Monday, February 28, 2005

but seriously folks

On a more serious note, the Supreme Court announced today that it will decide a case that could end up being very important -- good or bad -- regarding the First Amendment rights of public employees. As Lyle Denniston explains at SCOTUSblog, the case involves a deputy D.A. who alleges that he was fired "for protesting in an internal memorandum that a deputy sheriff had lied in an affidavit to support a search warrant." The D.A. -- Gil Garcetti of L.A. -- apparently wants to argue to the effect that the First Amendment doesn't protect you, even if you are speaking about matters of such major public importance, if your speech takes place in the context of your job duties. I haven't seen his petition, but that seems to be the gist of it. I cannot bring myself to believe that the Supreme Court would say something that crazy in this area of law.

[A few minutes later:]

Having researched a bit, it really does seem that this is Garcetti's contention: that the speech, even though admittedly vitally important to the public, is not constitutionally protected because it took place pursuant to the employee's job duties. Here is why that is crazy. The Supreme Court has told us, as recently as just a few months ago, that it is vitally important that public employees be able to speak about about matters of governmental policy and functions, because they are so particularly knowledgeable about those issues and because those issues are so important. E.g., San Diego v. Roe. This, in fact, is what the Supreme Court said in San Diego v. Roe along the way towards limiting First Amendment protections when public employees speak about other topics. So now, if the Supreme Court were to hold, "yes but that speech is not protected when it is done pursuant to the employee's job duties," then every employee -- if he or she wanted to remedy governmental malfeasance and not get fired for it -- would have to run to the newspapers rather than speaking about it through internal channels. (If you went through channels, the employer would just fire you and then say you had no First Amendment claim because going through channels was part of your job duties.). But of course if the assistant D.A. had run to the newspaper with his whistle-blowing, rather than reporting it through appropriate channels, the D.A. would have fired him for having violated his job duty of reporting such things internally.

Do public employers really want more employees to run directly to the newspapers when they know of impropriety? Does Gil Garcetti really want to have his name attached to the argument that it's constitutional to fire an assistant for disclosing police perjury? Why has this case been taken to the Supreme Court? Why did the Court agree to hear it? These questions and more will be answered several months from now.

Some things you read about silly laws are entirely true, and the great thing is that you can verify them yourself online. For instance, I am now informed that Mississippi has a statute that makes it a crime to keep a "stallion or jack[ass]" within 100 yards of a church, or in public view in an enclosure bordering on a public highway. Mares and jennies, no such prohibition. By the way, this is not a supposed matter of public safety (fear of distracted drivers causing wrecks, or whatever mishaps might befall distracted churchgoers); it is in the part of the code devoted to "crimes against public morals and decency." If you have trouble figuring out why such a law would only apply to the males of the species, let me know and I will email you privately.

Sunday, February 27, 2005

silly laws

Yesterday Boing Boing had a post about a couple of people who have embarked on an effort to violate lots of silly laws. Now, much of what you read about silly laws is itself silly. If somebody tells you, for instance, "It's illegal to tie an elephant to a parking meter in Provo!" my bet would be that what the Provo ordinance really says is that you can't tie an animal to a parking meter.

In Alabama, it is unlawful to sell dildos while wearing bowling shoes. I feel silly for not having thought to blog about this, when the Supreme Court declined to hear the case challenging the law; Bitch PhD was funny about it.

Saturday, February 26, 2005

that elusive thing called 'truth'

In high school I had a physics and calculus teacher who taught us to ask ourselves, upon working out what we thought was the answer to a math problem, whether that putative answer had "the ring of truth." Does the number you came up with seem to be of about the right order of magnitude? Is it a messy number when you expected a neat one? That sort of thing. Some people had an ear for the ring, and others didn't; I did, it turned out.

I was thinking about this earlier today when pondering, once again, the sperm-gift case discussed below. I keep thinking that you could do a whole semester in law school about various angles on the sperm-gift case; everything that you need to know about how to be a lawyer can be gained through meditation on, and vigorous discussion of, the sperm-gift case. I am not joking, in case you are wondering.

I was going to say that one of the lessons is a very important one for nearly every lawsuit and for public discussion of nearly every lawsuit: nobody, except maybe the parties to the case, can claim to know what the facts are until the case is over. Then, while it may be fun for people to criticize the fact-findings of the designated fact-finder (judge or jury), there's really not much point; it was somebody's job to find what the facts were, and that "somebody" wasn't you or me. So, even though my "ring of truth" detector suggests to me that the allegations of the plaintiff (male) are probably false -- i.e., I would bet that the pregnancy happened the old-fashioned way, as the defendant says -- I don't know and neither do you. And it is very very important that lawsuits not be dismissed based on what a judge's "ring of truth" detector says before hearing the evidence.

Then I was going to point out that so very many commenters and pundits ignore this important point, for fun or profit. You will be hearing a lot of this in the upcoming week, I bet, when the federal government (probably) files its petition asking the Supreme Court to hear the case about whether law schools have a constitutional right to exclude military recruiters in protest of the military's anti-gay policy. You will hear people say that such action by law schools is horribly detrimental to the national defense, and impairs the ability of the military to attract top lawyers, and burdens students, and so forth ... and they will not tell you that in the case at issue there is absolutely no evidence of those things at all. That was, in fact, a large part of the point of the appellate court's decision, which the Supreme Court will likely be asked to review.*

So I was all ready to post something to that effect, when I read the lower court decision in one of the Ten Commandments cases that the Supreme Court will be hearing next week. You can find it on this page; it's the Texas case, involving a big stone Ten Commandments monument on the grounds of the Texas Capitol and State Supreme Court. And the Fifth Circuit, upholding the display and rejecting the constitutional (establishment clause) challenge, says: (a) the State's purpose in putting up the display wasn't to promote religion -- it was to thank the Fraternal Order of Eagles for all their good work on behalf of kids!!!, and (b) a reasonable observer would not infer an official endorsement of religious belief, but would think, "oh, this is just in reflection of the impact that the story of the Ten Commandments has had on our secular legal tradition!"

And my ring-of-truth detector went haywire and started smoking.

* I wrote an amicus brief in support of the plaintiffs in the case, which you can download from this site.

Thursday, February 24, 2005

other blogging

This is your periodic reminder that, if you prefer your blogging to be of professional interest only, you can read my almost daily updates of Eleventh Circuit decisions at the group effort Appellate Law and Practice.

In a related vein, note that I will be updating the blogroll sometime soon, to link to some more interesting blogs.

I am sorry to report that I cannot find, for you, a linkable copy of the Illinois Appellate Court decision discussed in this article from the AP. Plaintiff alleges that Defendant tricked him by keeping his semen, obtained through oral sex, and then impregnating herself with it after they broke up. According to the article, the appellate court reverses the dismissal of the case (i.e., more or less, holds that the case can proceed so that the disputed facts can be resolved), on the "infliction of emotional distress" claim -- but upholds the dismissal of the fraud and theft claims, holding that (how to put this ...) ejaculating in someone's mouth is a "gift." Must remember that.

Sounds like a pretty reasonable decision to me, actually, but it is hard for me to avoid finding humor in the "gift" thing.

Apologies to everyone for my even-higher-than-usual level of boringness today, which is particulary bad timing since Dwight was nice enough to mention this blog yesterday in the post at Wampum announcing the Koufax winners. The reason is that I feel very lousy, having apparently caught Dwight's flu-ish thing by reading a post where he mentioned it. Maybe more interesting stuff later or tomorrow. Please keep coming.

UPDATE: But I will say that this, re the dubbing of "Ashcroft" over the word "asshole" in the edited-for-air-travel version of a recent movie, should start a trend.

Wednesday, February 23, 2005

for law nerds

Today I will be filing a cert petition with the U.S. Supreme Court on a question that I think is very interesting, but then again I'm a law nerd: the governing standard as to when a District Court should award attorney fees under 28 USC 1447(c) upon remanding a wrongly-removed case to state court. It's a good question for the Court to resolve, I think, and there really is a split in the lower courts. If this fascinates you as it does me, let's chat.

Also, I hereby give a strong plug to Wilson-Epes Printing Co., here in Washington, which is a great printer of Supreme Court briefs and other legal materials. If you are ever filing a cert petition, or have some brief in a lower court that you want to make look really good (which is sometimes a useful strategy to make your case stick out from the pile), use them. Fantastic people and fantastic work.

[UPDATE: Based on overwhelming interest (i.e., 2 people, in comments) I have made the petition available for download from heldman.net. Accolades and constructive criticism will be appreciated.]

Tuesday, February 22, 2005

subliminal messages from the Supreme Court

So I'm reading an opinion that the Supreme Court put out today, about whether somebody injured on a dredge in Boston Harbor is covered by this specific federal legislation, and it's all about the meaning of the word "vessel." So the Reporter of Decisions -- the person at the Court who writes the executive summary of the decision, which appears at the beginning -- writes that the Court holds that certain precedents did not change the "definition of vesselhood." Vesselhood? Who ever heard of a word such as "vesselhood"? And googling it, I find that the word only seems to pop up in religious and mystical contexts, computer gaming, and discussion of the Vagina Monologues. So I'm wondering, is the subliminal message here about religion or vaginas?

Rightwing eggheads have it all figured out: they get paid (directly or indirectly) to write crazy-ass articles like this (arguing that the recent class action "reform" bill "doesn't go nearly far enough" and proposing various other changes to make it even less likely that corporations will be called to the carpet when they cheat lots of people for a little bit each). What a sweet deal. And here I am writing this silly blog for free. If I had a patron, I would write an article proposing a new legal cause of action called "fraudulent time-wasting" that would allow lawyers to sue on behalf of a class, whenever some company sends out a mass mailing that says "IMPORTANT MESSAGE INSIDE ABOUT YOUR HEALTH BENEFITS" or "PRIORITY MAILGRAM TO: Sam Heldman" or other stuff designed to get you to think it's important to open a piece of mail but then you find out that it's really just junk. The damages would be $1 per recipient, as a reasonable approximation of the value of the time wasted, plus attorneys' fees. That way, Democratic elected officials could demonstrate reasonableness, and gain whatever pro-business cred they think they need, by opposing my proposal rather than by signing on here and there to absurd Republican stuff.

Friday, February 18, 2005

Thursday, February 17, 2005

chutzpah

For a variety of reasons, I think that Lawrence Small is and has been a horrible head of the Smithsonian. But what more can you possibly say about a person who, when convicted of a federal crime and sentenced to community service, suggests to the judge that the community service should consist of reading books and trying to get Congress to change the law he was convicted of breaking, on the grounds that the law is old and crazy?
(link via HB)

Wednesday, February 16, 2005

Tuesday, February 15, 2005

Novak, Plame, et al.

The U.S. Court of Appeals for the D.C. Circuit today held that Judith Miller, Time magazine and a Time reporter have no privilege against revealing their "confidential source(s)" in the Novak-Plame investigation. Opinion is here. The highlights depend on your point of view:

If you are a lawyer who ever practices in this area, the whole thing is the highlight. No First Amendment privilege at all, says the Court -- but then the three judges split three ways as to whether there is any common law privilege. They all converge on the conclusion that even if there is such a common law privilege, it is not absolute and is overcome in this case given the importance of the grand jury's investigation.

If you are most interested in the substance of the investigation itself, you will be intrigued to note that there are several pages of redacted passages where Judge Tatel -- who is, in this, speaking for all three judges -- explains (but not to us!) the particular facts about Miller and Cooper and their connection to the disclosure of Plame's identity with the CIA. Read Judge Tatel's opinion, pp. 73-80 of the pdf file, and wish wish wish that you could see the words that used to be in that blank space. And then read his conclusion -- again remembering that he is speaking for all three judges on this particular point -- as he says

Were the leak at issue in this case less harmful to national security, ... I might have supported the motion to quash. Because identifying appellants’ sources instead appears essential to remedying a serious breach of public trust, I join in affirming the district court’s orders compelling their testimony.

Maybe some Right-partisan bloggers who pretended that there was nothing to this investigation, or that the whole thing was ridiculous partisanship on the part of Bush-haters, will understand now?

If you love it when people outside of the blog world recognize the existence of the blog world, you will be thrilled by a portion of Judge Sentelle's concurring opinion, as I explain and quote here at Appellate Law and Practice.

So the Governor of Arkansas got himself a "covenant marriage.". If my wife told me that she wanted to enter into a new legal status by which the government forbade her from making the decision to leave me, I would be mighty offended. I can understand throwing away the last piece of pie, in order to keep one's future self from eating it -- the reason being that the piece of pie sure will be tempting. But is it really going to be so very tempting for her future self to leave me, so tempting that ordinary self-control and judgment won't stop it, so tempting that she would need a law against it? Bummer. But then again, for similar reasons I ordinarily go to some lengths to avoid saying or writing "my wife," so I recognize I'm not the average American on this issue.

Because I am one of those bleeding-heart liberals you always hear about, I am trying to feel some sympathy for this guy: the tough-on-crime, especially-tough-on-drug-crime Texas District Attorney who was -- you don't need me to tell you, you can see it coming -- a meth addict.

Yesterday sex, today drugs. Tomorrow: someone who has intentionally made himself a public figure on the side of those who want to ban rock and roll turns out to be living a secret life as a member of a Kiss cover band.

It is not that I am afraid of drawing attention to myself lest somebody start digging into my past. Just don't have much to say. But I do have friends who sat next to Bill and Hillary Clinton at a nice restaurant last night for Valentine's Day.

Saturday, February 12, 2005

music

Saw Bill Frisell play with his 858 Quartet last night at the Library of Congress -- more challenging than some of his other stuff, and great. And I was thinking all night, who is this incredible cellist, who varies between playing it straight, and banging on it to create a groove? It was Hank Roberts, and the funny thing is it turns out he also plays in a group with my old friend, old-time banjo player Richie Stearns. From avant garde string quartet music, to old-time string band, in one simple step.

Friday, February 11, 2005

TV

In my capacity as a parent in a Nielsen TV-ratings family this week, I will not allow my child to watch those awful Berenstain Bears, even if he says he likes them. Some people are offended when Buster meets lesbians? I'm offended by stupid bears whose conception of gender roles is stuck in the 1950s.

So the damn thing passed yesterday, and as I woke up this morning I started wondering another thing:

When a case is filed as a class action and removed to federal court, and the federal judge declines to certify the class, can/should/must the judge remand the case to state court? The statute is hopelessly unclear about this, to my eye, and in any event it's arguable that in some situations a remand would be constitutionally required. So think of the possibilities: removal, denial of certification, remand -- then the state court (using the different state-law standard for class certification, or using its discretion differently) certifies the class -- so the case is removed again, and the federal judge decertifies the class, and remands it again -- and then the state court certifies again ... a perpetual motion machine. Do I really think this will happen? I don't know; it might. But it's one more bit of proof that the authors of this bill weren't even trying to write a law that makes sense. More here and here and here, (UPDATE: and if you're really interested, comments by me at Kevin Drum's and James Joyner's blogs.)

But as I said on the lawyer radio yesterday, there will come a time when the corporations will regret this bill. Nothing is forever -- not even the current preference of corporations for federal courts over state courts. And, as long as cases are going to be in federal court, Plaintiffs' lawyers will make the most of federal laws. Magnuson-Moss Act, anyone?

You will find, if you look through the archives of Ignatz I (before the hiatus), that I spent a lot of time talking about why I oppose the nomination of former Ala. Atty. Gen. Bill Pryor to the U.S. Court of Appeals. After that, of course, he got filibustered and got a "recess appointment" (though whether it was actually a constitutionally legitimate "recess" appointment is one of the big questions). The questions now are two: (1) whether the Supreme Court is going to agree to decide whether his temporary appointment was valid, and (2) whether the Republicans in the Senate will change the rules to do away with the filibuster in order to get him confirmed to a lifetime appointment.

I am not here to re-say all that I said about why I oppose his nomination; you can use that little search box above, look for "Pryor," and you'll find it all.

Instead, what I am here to say is that I find it disturbing that some of his supporters -- and even some Senators -- think it appropriate to say, "he ought to be confirmed because looky here, he hasn't been an extremist during the few months he's been putting out opinions by virtue of his temporary appointement." The reason that disturbs me, is that it highlights the whole reason that "recess" appointments to the federal judiciary are such a horrible idea and are (in my view) unconstitutional. Do you really like the idea of a judge sitting there deciding cases, while he knows in the back of his mind that whether he's confirmed to a lifetime appointment may depend on how he decides those cases? I don't like it, and it's contrary to the whole purpose and concept of lifetime appointments to the federal judiciary. Any Senator who takes this line does not really understand the concept of judicial independence.

David Van Os is a long-time union lawyer who just finished a strong though non-winning campaign for a position on the Texas Supreme Court. I highly recommend that you read the first installment on his something-like-a-blog called "A Fighting Democrat". Here is an excerpt:

In 2004 I ran for the Texas Supreme Court in a statewide race as the Democratic nominee. I went all over my state openly challenging corporate power and openly challenging the radical rightist Republican assault on Constitutional liberties and Constitutional checks and balances. Every major newspaper editorially blasted me as a populist liberal Democrat in unflattering terms. I responded to every such editorial by publicly saying hell yes I am a populist, a liberal, a progressive and proud of it, and I thanked each newspaper for telling the truth about me. On the stump in rural West Texas, the harder I attacked the runaway corporate control of my state's highest court the louder people cheered. I carried 17 rural counties that Kerry-Edwards lost, and ran ahead of the ticket statewide and in every region. Upon analyzing the election returns in the metropolitan areas, I found that the more the daily newspaper had attacked me for being a liberal, a populist, or a progressive, the better my results were.

Democrats cannot restore America to a government of the people by nibbling at the edges looking for a pickup of a few votes here and there to eke out narrow victories with defeatist play-it-safe strategies. In order to reclaim government on behalf of the people, Democrats have got to attack the essence of the Republicans' radical rightist drive for totalitarian power. Democrats have got to call out the radical rightists' drive to wipe out the Constitutional checks and balances for what it is, and attack them over it. Democrats have got to call out the radical rightists' drive to wipe out the people's Constitutional liberties for what it is, and attack them over it. Democrats have got to call out the radical rightists' drive for corporate aristocracy for what it is, and attack them over it.

I agree fully. Is it a winning electoral strategy in the short term? Hell if I know. Is it a winning electoral strategy in the middle and long term? I bet it is. Is it more right and moral and fulfilling and fun and important than quibbling over the particulars of how much to tilt the tables further in favor of the powerful? Yep.

Remember how the class action bill was being sold as a way of allowing corporations to get out of "judicial hellholes" -- getting cases out of certain putatively horrible state courts and into the lovely lovely federal courts where cases can be heard fairly? That's inoperative now. The purpose is now overtly to make sure that corporations win class actions. That's why, in beating down an amendment designed to make sure that federal courts don't just dismiss class actions willy-nilly because they're too hard to handle, but instead hear them on their merits, Sen. Grassley (the bill's main sponsor) said that would "defeat the purpose" of the bill. Right.

You can hear me rant about this and other aspects of the bill this afternoon on the Legal Broadcast Network, internet radio for plaintiffs' lawyers and other lovers of justice, from 430 to 530.

Wednesday, February 09, 2005

Something short and pithy to read, from Nathan Newman. Nathan's post will not surprise you, given what you know about the Bush administration's attitudes towards laws that constrain it, but will inform you.

The Senate will, today, be debating the class action "reform" bill. And the more times I read the bill, the more clear it is to me that it is a monstrosity, and that many of the people who speak in support of it are spouting falsehoods.

The bill, as I mentioned before, is largely about whether class actions will be litigated in state court (where plaintiffs' lawyers tend to prefer to file some types of class actions) or federal court (where defendants tend to prefer to litigate them). Some people on each side argue that this is some grand philosophical issue of the proper balance of federalism. Not me. I'm candid about the fact that my view of this issue is based purely on a practical assessment of the likely impact on the real world of litigation. I am quite sure that industry's support for this bill is similarly based on practical reality rather than some reading of the Federalist Papers. And I guarantee you that if the bill passes, defendants will remove class actions to federal court not based on a philosophical principle as to the proper scope of federal authority, but based on the perception that they will be more likely to win in federal court. Duh.

So why do I oppose putting more class actions in federal courts? In part, it's because in some places these days, federal judges are in general less favorably disposed towards class actions than are state court judges. So, if more class actions go to federal court, fewer of the cases will be allowed to proceed as a class action, and so there will be more unremedied corporate misconduct, and so there will be more corporate misconduct. And second, it's because if more class actions go to federal court, the federal courts will be swamped. They're already swamped, frankly, with criminal cases that could perfectly well be prosecuted in state courts. But this bill will make them swamped swamped swamped. The federal judiciary's own assessment is that class actions take about five times as much judicial work as regular civil cases. Pretty soon, the federal courts won't have time to do anything but put people in jail and hear class actions. All other cases will sit on the back burner. Too bad for everybody else, like employees who have been discriminated against, etc.

Now, some people who support this bill will tell you that it is more limited than I am making it out to be -- that it is meant to allow "removal" to federal court only of a limited set of class actions. They want you to think that it is only for those class actions in which the class is nationwide or at least multi-state; they want you to think that it's crazy for one state's court to be able to rule on matters involving plaintiffs all around the country, and they want you to think that it's very hard for a court to apply the laws of various different states. And that's what you see being argued about in the Washington Post article linked above and again here. The Post even falls for it: "The bill would send cases with plaintiffs in multiple states into the federal system."

But that's not what the bill says. The bill's Section 4 allows for federal court jurisdiction of a class action even if the class is defined to include only residents of the state in which it is filed, so long as at least one defendant is headquartered in (and incorporated in) another state. The bill goes on to say that a federal court should decline to exercise jurisdiction over a class action where more than 2/3 of the plaintiff class live in the state where the case was filed, but only if (among other things) "no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons." (The rule is a little different if the class lives in the same state as the "primary defendants," but that will be relatively more rare). So, even if you file a Texas-only class action against Ford, you'll get removed to the over-burdened and therefore grumpy federal court -- because I guarantee you that somebody will have filed a similar class action, on a state-only basis, in some other state too. [UPDATE: This is my best guess as to what the legislation means, but there is the additional problem that it is written so poorly. If you read the provision I'm talking about, you'll see what I mean. It doesn't make grammatical sense in crucial ways.]

This bill is designed to do much more than solve the so-called "problem" of multi-state class actions. This bill is designed to swamp the federal courts so severely, that the federal judges will look for every conceivable reason to quickly rule for the defendants in every class case so that they can get back to working on other cases.

"Cranky rich people hire sharp-tongued and relatively uninformed young people all the time and put them on the mass media to badmouth the poor, spread bigotry, exalt mindless militarism, promote anti-intellectualism, and ensure generally that rightwing views come to predominate even among people who are harmed by such policies."

Monday, February 07, 2005

the problem with blogging

Two recent quotes that sum up the roots of my recurring blogger's-block. First, via (but not written by) M. Yglesias:

Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic are more excessive than his knowledge of the facts that are relevant to that topic.

I hate when I make a mistake. I hate when I get things wrong - it makes me feel like a fool and I feel responsible for making others who might not see the correction look like fools too if they pass it on.

Hence the lack of blogging here about the great issues of the day (Social Security, etc.) in favor of blogging about Jimmy Buffet license plates.

Did you know that the State of Virginia will sell you an official license plate for your car that demonstrates your status as devoted Jimmy Buffet fan? And there is at least one of them on the road; I saw it. I know, I know, to each his own, and I would defend to the death your right to like Jimmy Buffet, but really. I call for stricter separation of cheesy music and state.

Sunday, February 06, 2005

Ignatz and his siblings

After a long period of no blogging at all, I suddenly find myself blogging all over the place.

Ignatz here is still #1 in my heart, of course.

But there is also the Labor Blog, a group blog headed by Nathan Newman, where from time to time I post things like this which probably make Nathan think that I am a bourgeois dude rather than a true believer in the movement. I am a true believer in the movement, though I suppose that I have to admit that anybody with a bichon frise in his lap probably is at some level a bourgeois dude when you get right down to it.

And also, starting today or sometime soon, I will be adding some words to the site Appellate Law and Practice, a site that will not be interesting to you unless you're a lawyer, but if you're a lawyer you may find it to be a very useful thing. It is, essentially, a way of keeping current as to the opinions that are issued by the various federal circuit courts. My beat will be the Eleventh. In the old days if you wanted to stay current on appellate developments you had to grab the softbound orange volumes of the F.2d and then F.3d when they came into the office, and flip through the cases or the topical index to see what cases had been decided a month or so previously. Now all you have to do is skim through a website once in a while. Sweet. Check it out.

Saturday, February 05, 2005

continued ...

I will just add this, about the post immediately below this one, about the Ala. Dem. Party's blog. I have some sympathy for the position that I suppose the blog authors are probably in; they have, I speculate, been given leave to start such a thing, but have not been given leave to say anything on it that has any vigor. If my speculations are true, then this is a bad spot for a blogger to be in -- and it's worse for the Party to have that sort of blog, than no blog at all. I hope that the authors do get the internal go-ahead to let the spirit of blogging move them. The problem lies not in the bloggers but in the Party, if the Party is too afraid to stand up for the difference between Democrats and Republicans even in Alabama. And this, by the way, is one reason I hate the phrase and concept of "yellow-dog Democrats," which the state party embraces. The reason I hate it is that it implies that the reason to vote for Democrats is because they're Democrats and you always vote for Democrats. That's a lousy reason to vote for Democrats. The reason to vote for Democrats is because in the current state of the world the Democratic Party is the party that favors liberty and equality, more so than does the other major party, and favors the little guy over the big guy. And if the Alabama Democratic Party can't see that the issue of gay marriage is one in which they should (as in other issues) favor liberty and equality, then they could at least be more vociferous about the issues on which they are on the side of the angels.

Friday, February 04, 2005

this is what a whipped (yellow) dog looks like

I am, really, very fond of some people who are powerful within the Democratic Party of the State of Alabama. Some of them are my friends, some are clients, some are both. And I do understand the necessity of not getting too far away from "average" political opinion if you want to win elections.

But looking at this post on the new blog of the state party, I say, "this is what a whipped (yellow) dog looks like." The post in question has to do with an article from the Birmingham News, in which a defeated Democratic candidate, and a Party official, cry foul at a Republican flyer that had suggested that the Democratic candidate was in favor of, or at least was soft on, gay marriage; she had refused to sign a pledge to support an amendment to the state constitution. The candidate is quoted as feeling embarrassed at her friends' inference that she might actually hold the abhorrent view that was attributed to her; and the Party official is quoted as calling the flyer "slanderous." Yes, that's right: it's defamatory even to suggest that somebody supports gay marriage.

Now, I'm not saying that the candidate and the local official should have said "damn straight (ha ha ha) we're for gay marriage," though I wish they would have. At least, though, the blog on the Party's own site could have done something other than implicitly adopt the whining about the unfairness of the accusation. I can even write the blog post for them:

"I'll tell you what. Democratic state legislators will glad to debate whether to add that amendment to the monstrosity of a state constitution we've got here in Alabama -- an amendment that (by the way) wouldn't change one damn thing in state law, but would just satisfy the Republican Party's desire to stir up its base -- just as soon as we finish taking care of real business, like ensuring that there are no hungry kids in this state and that corporations pay their fair share of taxes so that our schoolkids can have decent supplies. Now, if the Republican legislators would step out of our way and let us pass that kind of law, then it'll just be that much sooner that they can have their fun talking about sex."

A party that can't even put that kind of language on its own blog -- or at least something other than whining about the unfairness of being accused of supporting gay marriage -- needs to take a long hard look at itself, I tell you what. I mean, I'm about the least rugged Alabamian you'll ever meet, and even I'm turned off by that level of wimpiness.

Two posts constitute a series, so with this second installment of "now that's a good sentence" we are really underway.

From John Holbo at Crooked Timber, making fun of an Instapundit attack on "the left": "Doesn't that prove that the left are bankrupt Euro-slave Symbionese Liberation Army remnant look-alike dead-enders, plus Wavy Gravy if he's still alive?"

Now that's a good sentence. In fact, I would venture to say that most sentences ending with "plus Wavy Gravy if he's still alive" would be good sentences.

Thursday, February 03, 2005

I understand that most people's jobs are hard, but ...

I try not to make fun of how people do their jobs, really. For instance, you can't imagine how tempted I have been to blog about how bad a certain newspaper's courtroom sketch artist is, and to post some horrific examples. But I haven't, because it's probably not an easy job and for all I know the artist is very nice. And I know that it's hard to write legislation, too.

But given the corporate/Republican desire to dick with trial lawyers, protect corporations, and swamp the federal courts in this new class action bill, wouldn't you think that they could at least write a bill that lawyers and judges would be able to interpret without scratching their heads and wondering what the hell they were thinking? The text of the bill is now available from this page of the Senate's site, having previously been somewhat hard to track down.

So, among other things, the bill would give the federal courts jurisdiction over most large-scale class actions -- those in which the amount in controversy exceeds $5 million (assuming, as will be true in nearly all such cases, that at least one plaintiff lives in a state different from at least one defendant). Fair enough -- I mean, lousy and stupid, but at least comprehensible. So what this means, in the scheme of Title 28 of the U.S. Code, is that plaintiffs can file such a case in federal court when they want.

Now, there's a separate part of Title 28 that sets out the rules on when defendants can "remove" (colloquially, think "transfer") cases from state court to federal court. And so this bill includes a section 5, that will put a new section into that part of Title 28, and it says that class actions are removable to federal court. Now, you know and I know what we think that they meant by this ("they" being whoever wrote this monstrosity) -- that class actions are removable if and only if the amount in controversy exceeds $5 million, and the other things set out in the other section that I just talked about. But you know what? The bill doesn't say that. And I just know that if this bill gets passed, next time I file some less-than-$5million class action that is purely Alabama plaintiffs vs. some Alabama company, some defense lawyer is going to try to press the envelope and dick with us by removing the case, and claim that he's just following the "plain language" of the statute.

And then when I get the federal judge to "remand" the case (send it back to state court), the defendant will take advantage of the provision of this bill that allows the defendant to appeal such a ruling -- and then we'll all scratch our heads and try to figure out what the hell that part of the bill means when it talks about "accept[ing]" an appeal or "den[ying]" an appeal, because those are phrases that lawyers and courts rarely if ever use and nobody can really be sure what they're really supposed to mean.

I mean really, if you're going to try to hose the good guys, at least do it in a way that makes sense.

Wednesday, February 02, 2005

Labor Law

Consistent with my credo of "less blogging about labor, more doing about labor," I have been busy today dealing with some real-world fallout from one of the many bad decisions that the NLRB has issued this year. You should, however, read what Nathan Newman has to say about things today (1), (2), (3).

Why in the world would I think that a celebrity would make a good Governor, given Ronald Reagan, Sonny Bono, Jesse Ventura, and Arnold?

Why in the world would I think that somebody would make a good Governor whose platform is notably devoid of specifics on most of the main political issues of the era, who has so far said little if anything about economic justice, and who lists as one of his goals the end of "political correctness"?

Why in the world would I think that somebody would make a good Governor when he has nice things to say about George Bush?

Maybe I'm a sucker, but I'd vote for Kinky Friedman for Governor of Texas. Anybody who loves animals that much, and even seems to care about people, can't be too bad, can he?

Tuesday, February 01, 2005

another defeat for the Solomon Amendment

Yesterday, another federal court declared the federal law known as the "Solomon Amendment" unconstitutional.

The Solomon Amendment, you may remember, is the law that withholds federal funding from a university if any part of that university refuses to assist military recruitment. As a practical matter, what this mainly has to do with is most law schools' desire not to facilitate military recruiting, because the military discriminates on the basis of sexual orientation. The law has forced law schools to back off that stance, because even when they are willing to forego federal funding themselves, their universities won't allow them to sacrifice all federal funding for every part of the university in order to stand on principle.

Back in November, the U.S. Court of Appeals for the Third Circuit ruled against the government in another lawsuit challenging the law. (Pdf of decision here). I had written an amicus brief to the Third Circuit on behalf of a bunch of law school career services professionals who opposed the Solomon Amendment, and was pleased with the decision. I debated it a bit with Nathan Newman at the time on his site. (You can read my brief here (pdf) if you care to, and you will then imagine how especially pleased I was when certain things from that brief wound up in the Third Circuit's opinion.).

Various observers had pronounced that Supreme Court review of the Third Circuit decision was a near-certainty. I never bought it; for the law nerds among you, the reason is that the Third Circuit decision was merely the reversal of the denial of a preliminary injunction, and was not an appeal from a final judgment. In any event, yesterday's decision in the suit brought by Yale professors makes it all the more appropriate for the Supreme Court to stay out of this dispute for the time being. If the Government goes forward in the Third Circuit case and asks the Supreme Court for review, the Supreme Court ought to say to itself, "No, let's wait and see what the Second Circuit does, when the Government appeals the Yale case; if the lower courts all end up agreeing that the law is unconstitutional, then the issue might not be a good candidate for our review at all."

For the super-law-nerds among you, you will find it interesting to note that one Yale law prof, Jed Rubenfeld, apparently broke ranks with his fellow plaintiffs; he wanted to challenge the law only under a "compelled speech" theory and not under a "freedom of association" theory. (The "compelled speech" theory, in a nutshell, is "You know how the Supreme Court has held that mushroom growers can't be forced to subsidize government-sponsored mushroom ads if they don't want to? By the same token, a law school can't be forced to provide material support to the government's recruiting message." The "freedom of association" theory, in the same lame nutshell, is "You know how the Supreme Court has held that the Boy Scouts have an associational right to exclude gay people if they want? By the same token, law school communities have the right to exclude anti-gay discriminators if they want.") As a matter of my personal preference as to what constitutional law ought to be, I would probably agree, because of my qualms about the Boy Scouts case; but as a matter of what constitutional law is these days, both theories end up as winners. I will also note that I edited an article by Jed Rubenfeld back when he was still a lawyer and I was just a little law-student twerp.

And to those of you who say, "darn liberal activist federal judges! don't they know that this will horribly impair the military's ability to attract the best young lawyers?" -- please note that the court in the Yale case, like the Third Circuit before it, pointed out that the problem with this argument is that there is absolutely no evidence to support it. And that's the great thing about the practice of law: it's based (at least in theory) on evidence, rather than just spouting off as to what you think is probably true. That's how law differs from much blogging.

In case any entity decides that this constitutes a communication about my services, let me point out that:
No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.